The Real Stakes in the Health-Care Case: A Guide

Update, June 28th: The Supreme Court has upheld the Affordable Care Act.

No, I do not know what day the Supreme Court will decide the heath-care case. (Best guess: June 25th.) No, I have not “heard anything” about how the Justices will rule on the challenge to the constitutionality of the Affordable Care Act. (The Court remains one of the few leak-proof institutions in Washington.) Still, based on the briefs, the oral arguments, and the history of the Court, it’s possible to offer a guide to what to look for when the decision comes down.

Premature? The first issue concerned whether, since the law does not go fully into effect for two years, whether the legal challenges to the law were premature. Based on the questions at oral argument, none of the Justices seemed very concerned about this issue. They all appeared ready to decide the merits of the case.

Individual mandate. This issue was the most dramatic part of the argument. Here, the conservative Justices attacked Solicitor General Donald Verrilli, who was defending the law, and gave clear hints that they favored declaring the law unconstitutional.

Severability. Can the Justices strike down part of the law and leave the rest of the two-thousand-seven-hundred-page law intact? In some respects, this was the most surprising part of the argument—and the most disturbing development for the Obama Administration. Two Justices—Antonin Scalia and Anthony Kennedy (the supposed swing vote in the case)—appeared to feel that it was best to strike down the full law, including the parts that are clearly constitutional, and let Congress start from scratch.

Medicaid Expansion. Does this part of the law put too much of a burden on the states? The Justices and the lawyers were pretty exhausted by the time this debate took place, but this issue—seemingly the least controversial part of the case—also seemed to potentially perilous for the Obama Administration.

The second question is the heart of the case. Does the Commerce Clause of Article I of the Constitution empower Congress to require individuals to buy health insurance? The individual mandate may not be an especially popular part of the law, but it makes the more appealing provisions of the law possible. The A.C.A. can rule out insurance exclusions for preëxisting conditions and require insurance companies to allow children to stay on their parents’ plans through age twenty-five only because the individual mandate expands the pool of the insured. If the individual mandate goes down, it’s not clear if it’s even possible for the numbers to work for the rest of the law.

Of course, the true disaster scenario for the President would be to lose on the third question as well, which would mean he would have to start from scratch on health care. In practice, with a Republican House of Representatives, that mean concluding his first term with nothing to show on his signature domestic issue.

It’s been said that Obama might somehow be better off politically if the Court were to strike down the unpopular parts of the law (or even all of it). According to this reasoning, he could then avoid the problem of defending the law on the campaign trail and concentrate instead on issues on which the Democratic view is more popular.

This is nonsense. In the first place, in politics and the rest of life, it’s always better to win than lose. Winners win, and losers lose. Moreover, the invalidation of such a central achievement of his Administration would taint Obama’s Presidency forever. To casual followers of politics (and the Supreme Court), which is to say most people, it would look like Obama overreached in the way that the stereotype suggests that liberals often do—in expanding the size of government. In the event of a loss, Obama would blame the Court, perhaps for good reason, but for better or worse the Justices will have the last word. In the famous words of Justice Robert Jackson, “We are not final because we are infallible, but we are infallible only because we are final.”

But a loss in the A.C.A. case would be even more costly to Obama, and to Democrats, than the electoral calculus may suggest. If fully enacted, the A.C.A. would achieve a cherished progressive goal that has gone unfulfilled for two generations: to bring health insurance to tens of millions of the uninsured. The A.C.A. case is less about winning elections than about why elections matter. A loss in the Supreme Court would send the Democratic Party back to square one on the issue.

In a larger sense, a new limit on congressional power under the Commerce Clause would represent a crucial new impediment to all attempts by the federal government to address national problems. That can’t be good for the political party of activist government. In the election of 2008, the party of smaller government lost at the polls, but the Supreme Court may yet trump the will of the voters. It’s happened before.

Read the New Yorker’s full coverage of the Supreme Court’s historic health-care decision.